Judge hears Fla. prison privatization challenge

A Florida judge quoted from Sherlock Holmes and conservative U.S. Supreme Court Justice Antonin Scalia on Thursday as he questioned the state's plan to privatize prison healthcare services.

Circuit Judge John Cooper did not immediately rule but promised a quick decision after the second of two hearings in the case. The $58 million outsourcing plan is being challenged by two unions representing many of some 3,000 prison healthcare employees who stand to lose their jobs.

"Sherlock Holmes, what he did say is the solution is the one which all the facts fit," Cooper said. "So, that's what I'm searching for."

No matter how Cooper's search ends, though, his ruling is likely to be appealed.

The American Federation of State, County and Municipal Employees and the Federation of Physicians and Dentists/Alliance of Healthcare and Professional Employees contend a legislative budget panel exceeded its authority by approving the privatization plan submitted by Gov. Rick Scott's Department of Corrections.

The unions say that's something only the full Legislature can do. They urged Cooper not to rely on a 14-member committee to determine the full body's intent.

"It's clear that what's happening here is that the governor wants the court to become Carnac the Magnificent and put an envelope up to their head and figure out what it was that maybe somebody would have wanted," AFSCME lawyer Alma Gonzalez said after the hearing.

Lawyers for the state and healthcare contractor Corizon Inc. argued the Department of Corrections has all the authority it needs to privatize health services under an existing law that permits outsourcing if it saves money.

They said no further action by the Legislature is needed and what the Legislative Budget Commission did was simply approve an internal funding shift to carry out the department's plan.

Cooper cited an earlier challenge to a 2011-12 budget provision that also called for the outsourcing. Unions argued in that case that the budget provision was invalid because lawmakers should have passed a substantive law to make such a significant policy change. Another judge declared that case over when the budget expired on June 30 and no one appealed.

"Is that consistent with your argument today that you want me to use that proviso to divine an intent of the Legislature?" Cooper asked Corizon lawyer William Williams.

"Absolutely," Williams responded. He said the budget provision was an expression of the Legislature's intent to privatize health services in three of the department's four regions but it wasn't necessary to actually do so.

Brentwood, Tenn.-based Corizon has signed a five-year contract to provide health services in prisons north of Palm Beach County. The department is negotiating with another company, Wexford Health Sources Inc. of Pittsburgh, for a South Florida contract.

Union lawyer Thomas Brooks argued the only funding for the outsourcing in three of the four regions is the now-expired budget. The current budget has a similar provision but only for the South Florida prisons.

"The question is did they get it funded?" Brooks said. "That's what didn't happen here."

Cooper then noted Scalia's view that courts should look at what legislative bodies say "instead of trying to read the mind of the Legislature."

"When one tries to decide what the Legislature intended as opposed to what they actually did then you enter into a murky mire of speculation," Cooper said.

Williams, though, said there's no need to speculate, again citing the contracting law.

He also argued the Legislative Budget Commission had the constitutional and legal authority to decide if a proposal complies with the Legislature's policy and intent and did so in this case.

A separate budget provision called for a private takeover of all prisons in South Florida, but it was struck down by another Tallahassee-based judge. A substantive bill to do the same thing subsequently failed to pass in the Legislature. That case should have no bearing on the healthcare issue because full prison privatization is covered by a different law, said Jonathan Sanford, a lawyer for the state.